Opinion
NO. 01-16-00252-CR
07-12-2018
VASTIE SHAKIRA COLEMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1354369
MEMORANDUM OPINION
Vastie Shakira Coleman pleaded guilty to causing serious bodily injury to a child. The trial court found Coleman guilty and assessed punishment at 55 years' confinement. Coleman appeals her sentence, contending that her punishment violates the Eighth Amendment's prohibition against cruel and unusual punishment and that her trial counsel offered ineffective assistance. Because Coleman forfeited her Eighth Amendment argument and we find no ineffective assistance, we affirm.
Background
Coleman beat her four-year-old son to death with an electric cord. She pleaded guilty to the charge of serious bodily injury to a child.
The trial court held a sentencing hearing, at which the State introduced Coleman's pre-sentence investigation (PSI) report. The PSI report recounts the following.
Around 6:00 p.m. on July 15, 2012, emergency medical services were dispatched to Coleman's apartment in response to a 911 call. The emergency workers immediately transported the complainant to North East Memorial Hospital, where, at 6:50 p.m., he was pronounced dead.
Harris County Deputies Valdez and Black were also dispatched to Coleman's apartment in response to the 911 call. Valdez and Black arrived at 6:40 p.m. and met with Coleman and her boyfriend, Frankie Waters. The complainant's six- and eight-year-old siblings were present.
Waters told the deputies that the complainant had urinated on himself in the car. When they arrived home, Coleman tied the complainant's hands to a bathroom rod and used a telephone cord to beat him. Waters stood at the bathroom door and watched Coleman whip the complainant 20 to 30 times. Waters then left the room. Around 5:00 p.m., Coleman bathed the complainant. Coleman then whipped him again. Afterwards, Waters and Coleman wrapped him in a towel and laid him on the couch. According to Waters, the complainant looked sleepy, so they "flicked water" on his face to keep him awake. But he seemed to stop breathing, so they called 911.
Emergency medical services supervisor Smith asked Coleman why the boy was beaten. Coleman replied "I beat him. It's all my fault. I don't care what happens to me."
Later that evening, Sergeant Clopton of the homicide unit arrived at Coleman's house to investigate. He noted a wire tied around a metal handicap rod above the bathtub. He also observed a telephone cord with exposed bare wire on each end, and blood drops and spatter on the sink and walls of the bathroom.
Sergeant Clopton and Sergeant Miller then interviewed Coleman, who stated that she and Waters were driving to buy "Kush," synthetic marijuana, when the complainant urinated on himself. Coleman admitted that when they arrived home, she tied the complainant's hands with a wire to the bathtub rod and whipped him with a telephone cord. After a while, she stopped. But when she asked the complainant to promise not to urinate on himself again, he would not answer. That "made her madder," so she whipped him again. She noticed he was having problems breathing, so she and Waters tried to comfort him. She called 911 when he stopped breathing.
Two weeks later, Sergeant Clopton met with Child Protective Services (CPS) Forensic Interviewer Odhiambo and observed the interview that Odhiambo conducted of the complainant's siblings. Both siblings heard their brother being beaten to death. They had both been tied up and beaten with extension cords and belts, too.
Regarding criminal history, the PSI report states that Coleman admitted to theft of prescription drugs. On March 24, 2011, she was placed on two years' deferred adjudication, but she did not comply with her ordered supervision, did not complete community service as directed, did not take an anti-theft class as directed, and did not pay the ordered restitution. She admitted that she continued to take prescription opiates and tested positive for hydrocodone throughout her probation.
The PSI report also details Coleman's lengthy involvement with CPS. CPS previously investigated Coleman concerning allegations of sexual abuse of her oldest daughter, neglectful supervision, and physical abuse. During an earlier investigation, Coleman admitted that she whipped her oldest daughter with an extension cord. Coleman's caseworker told her that that was inappropriate, and just three months before the complainant's death, Coleman agreed not to physically discipline her children. She even signed a safety plan to that effect.
The PSI report also states that Coleman reported that she and her boyfriend smoked Kush "all day, every day," and that she had been smoking Kush and had taken 6 to 8 Lorcets on the day she beat the complainant to death.
The PSI report notes that, in a personal interview, Coleman stated, "I'm sorry, there's nothing I can say about what I've done. I can't believe my son is dead." Although Coleman "expressed great remorse over the death of her son," she "appear[ed] unable or unwilling to delve into the reasons for her actions."
At the sentencing hearing, Dr. M. Kondron, the assistant medical examiner who performed the autopsy on the complainant, testified that the cause of death was blunt-force trauma and that the manner of death was homicide. Through Dr. Kondron, the State introduced the complainant's autopsy (Exhibit 2) and autopsy photographs (Exhibits 3-55 and 57-59). The photographs, report, and Dr. Kondron's testimony established that the complainant received 160 injuries, "predominantly on the lower extremities, the back and the flanks," virtually all of which were "either straight lines, or straight lines with loops at the end." Dr. Kondron testified that the combination of physiologic changes caused the complainant's death.
The State also called M. Polk, an investigator with the Texas Department of Family and Protective Services. According to Polk, CPS became involved with Coleman in March of 2007, in connection with allegations of medical neglect of a nine-month-old child. CPS ruled the investigation "unable to determine," so it closed the case. Then in 2009, the complainant was temporarily taken out of Coleman's care in connection with allegations of medical neglect. CPS opened a third case in March 2010 involving allegations of sexual abuse of the complainant's sister, and in August 2011, Coleman's use of crack cocaine prompted CPS to open a case against her for negligent supervision.
After Polk testified, the State rested. Coleman called her grandmother, her aunt, and a friend to testify on her behalf. They testified that Coleman had had a hard life and had been abused by her mother. They believed that she would benefit from probation and rehabilitation.
The trial court sentenced Coleman to 55 years' confinement. She did not object to the sentence or request a new trial.
Coleman's conviction for serious bodily injury to a child is a first-degree felony, punishable by imprisonment for any term of not more than 99 years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL CODE §§ 12.32(a), (b), 22.04(e).
Discussion
On appeal, Coleman raises two contentions: (1) an Eighth Amendment challenge and (2) ineffective assistance of counsel. We address each in turn.
A. Cruel and Unusual Punishment
Coleman argues that her 55-year sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. See U.S. CONST. amend. VIII. Coleman did not preserve this argument.
Our precedent requires a defendant to object below or file a motion for new trial to preserve a complaint of cruel and unusual punishment based on disproportionality. See Delgado-Ramirez v. State, No. 01-17-00904-CR, 2018 WL 3117881, at *1-2 (Tex. App.—Houston [1st Dist.] June 26, 2018, no pet. h.) (mem. op., not designated for publication) ("[B]y failing to raise the issue with the trial court, Appellant did not preserve any challenge to the disproportionality of his sentence under either the United States or Texas Constitution."); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (by failing to object at sentencing hearing or raising complaint in motion for new trial, defendant failed to preserve argument that sentence was grossly disproportionate and violated Eighth Amendment); Battle v. State, 348 S.W.3d 29, 30-31 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also TEX. R. APP. P. 33.1(a).
Coleman concedes that she did not object or raise this issue in the course of her sentencing. She also admits that she filed no motion for new trial raising the issue. Under Texas law, this failure forfeits her argument. See TEX. R. APP. P. 33.1(a); Delgado-Ramirez, 2018 WL 3117881, at *1-2; Noland, 264 S.W.3d at 151-52; Battle, 348 S.W.3d at 30-31.
Coleman argues that "nothing precludes taking notice of fundamental errors." But she provides no support for her argument, and Texas law holds that this type of claim may be forfeited. See Delgado-Ramirez, 2018 WL 3117881, at *1-2; Mendiola v. State, No. 14-15-01095-CR, 2017 WL 888329, at *6 (Tex. App.—Houston [14th Dist.] Mar. 2, 2017, pet. ref'd) (mem. op., not designated for publication).
B. Ineffective Assistance of Counsel
Coleman also argues that her trial counsel did not provide her with effective assistance because counsel (1) failed to present evidence of insanity caused by voluntary intoxication; (2) failed to object to "cumulative, prejudicial photos" of the victim; (3) failed to object to her sentence as cruel and unusual punishment; and (4) bolstered the State's evidence in cross-examination. We disagree.
1. Standard of Review and Applicable Law
To be entitled to a new punishment hearing based on an ineffective-assistance-of-counsel claim, an appellant must show that (1) her trial counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004). Absent contrary evidence, we will not second-guess counsel's strategy through hindsight. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ("[I]n the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined . . . ." (internal quotation omitted)).
The appellant must provide a record that affirmatively demonstrates that counsel's performance was not based on sound trial strategy. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).
Where, as here, trial counsel is not given an opportunity to explain his actions, "the appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed, 187 S.W.3d at 392); accord Williams v. State, 526 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd).
To show ineffective assistance, an appellant must also prove that she was prejudiced by counsel's actions. Thompson, 9 S.W.3d at 812. This requires the appellant to demonstrate a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different. Id.
2. Analysis
We note at the outset that Coleman's trial counsel was not given the opportunity to explain his strategy as to any of Coleman's arguments.
Failure to Present Expert Witness
Coleman argues that her trial counsel provided ineffective assistance because he "failed to present expert witnesses with regard to insanity caused by voluntary intoxication" from her having smoked synthetic marijuana and taken the narcotic medication Lorcet on the day she killed the complainant.
"Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried." TEX. PENAL CODE § 8.04(b).
But to show prejudice from the failure to call an expert witness—as required under the second prong of Strickland—a defendant must show that a witness was available to testify and that his testimony would have been "of some benefit to the defense." White, 160 S.W.3d at 52; see also King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) ("Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony."); cf. In Ex parte Howard, 425 S.W.3d 323, 324 (Tex. Crim. App. 2014) (mem. op.) (remanding for new punishment hearing based on trial counsel's failure to have mental health experts appointed and to properly investigate and present insanity defense; applicant procured expert opinion of psychiatrist supporting his position).
Nothing before us shows that there was any witness who could have testified on Coleman's behalf in this regard or what such witness might have said. Accordingly, we cannot conclude that there is a reasonable probability that, absent trial counsel's failure to call an expert witness, the outcome of Coleman's sentencing hearing would have been different. See White, 160 S.W.3d at 52; Thompson, 9 S.W.3d at 812; King, 649 S.W.2d at 44.
Failure to Object
To establish deficient performance of counsel based on a failure to object, an appellant must demonstrate that the trial court would have committed error in overruling the objection if trial counsel had objected. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (per curiam); Toledo v. State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet ref'd).
Autopsy photographs
Coleman argues that her trial counsel was ineffective for failing to object to State's Exhibits 3-55, photos of the complainant's autopsy. Distilled, she appears to argue that her counsel should have objected under Texas Rule of Evidence 403 that the probative value of some of the photographs was "substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." See TEX. R. EVID. 403.
The record is silent as to why trial counsel did not object to the photographs. We thus presume that counsel was acting pursuant to a sound trial strategy. See Thompson, 9 S.W.3d at 813 ("There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance."); see also Rylander, 101 S.W.3d at 111 ("[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.").
To establish deficient performance of counsel, Coleman must demonstrate that the trial court would have committed error in overruling the objection if trial counsel had objected. See Vaughn, 931 S.W.2d at 566. Moreover, because counsel never had an opportunity to explain, the question becomes whether the failure to object was so outrageous that no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at 593; Williams, 526 S.W.3d at 583.
On this record, we cannot conclude that no competent attorney would have forgone an objection. Notably, these photographs were offered at a PSI hearing conducted before the trial judge, without a jury, subsequent to a guilty plea. See Ex parte Twine, 111 S.W.3d 664, 668 (Tex. App.—Fort Worth 2003, pet. ref'd) (danger of unfair prejudice greatly reduced when judge is trier of fact); accord Corley v. State, 987 S.W.2d 615, 621 (Tex. App.—Austin 1999, no pet.).
Furthermore, for a Rule 403 prejudice-based objection to be sustained, the asserted prejudice must be unfair. TEX. R. EVID. 403; see also Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) ("[W]hen the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome.").
Trial counsel could have determined, for instance, that a Rule 403 objection could be contrary to a strategy of showing remorse. Or counsel may have concluded that in light of the 160 injuries at issue, the photographs were not unreasonably cumulative. See In re K.Y., 273 S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (rejecting Rule 403 challenge, explaining that injuries "depicted from different angles and levels of closeness" can provide additional information). We cannot speculate on this silent record as to why Coleman's trial counsel did not object, and we do not conclude that counsel's failure to object was so outrageous that no competent attorney would have proceeded in that way.
Sentence
Coleman next argues that she received ineffective assistance because her trial counsel failed to object to her 55-year sentence under the Eighth Amendment as unconstitutionally disproportionate to her crime. Once again, on this silent record, the question is whether the failure to object was so outrageous that no competent attorney would have engaged in it. Menefield, 363 S.W.3d at 593; Williams, 526 S.W.3d at 583. It was not.
To show ineffective assistance, Coleman must demonstrate that the trial court would have committed error in overruling an objection to her sentence had trial counsel asserted it. See Vaughn, 931 S.W.2d at 566; Toledo, 519 S.W.3d at 287. Here, such an objection would have been futile. The Eighth Amendment forbids "extreme sentences that are 'grossly disproportionate' to the crime." State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016) (citing Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 1187 (2003) (plurality op.)). To determine whether a particular sentence is grossly disproportionate, we "judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender's prior adjudicated and unadjudicated offenses." Id. at 323. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, we compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. Id.
Texas courts have generally held that a punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Simpson, 488 S.W.3d at 323 ("[T]his Court has traditionally held that punishment assessed within the statutory limits . . . is not excessive, cruel, or unusual."); Toledo, 519 S.W.3d at 285 ("Generally, punishments assessed within the statutory limits do not violate federal and state constitutional prohibitions of cruel and unusual punishment."). Coleman's 55-year sentence is well within the statutory range—and not even near the top of that range —for her conviction for the first-degree felony of serious bodily injury to a child. See TEX. PENAL CODE §§ 12.32, 22.04(e) (first-degree felony of serious bodily injury to a child punishable by imprisonment for any term of not more than 99 years or less than 5 years and a fine not to exceed $10,000).
Further, the evidence at trial showed that, angered by her four-year-old son urinating on himself, Coleman not only severely injured him but also beat him to death. In light of the harm she caused her son and her culpability, Coleman's mid-range 55-year sentence was not disproportionate, much less grossly disproportionate, to her crime. See Simpson, 488 S.W.3d at 323; Toledo, 519 S.W.3d at 286 ("Because [defendant]'s sentence was within the statutory range applicable to the offense and was not grossly disproportionate to the harm caused to the student and [defendant]'s degree of culpability, we hold that he has not met the threshold for a comparative review of sentencing in similar cases."). Accordingly, Coleman's trial counsel's failure to object to her sentence on Eighth Amendment grounds was not so outrageous that no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at 593.
Bolstering the State's Case
Finally, Coleman argues that her trial counsel was ineffective because, she contends, his cross-examination of the medical examiner, Dr. Kondron, bolstered rather than challenged the State's case. Specifically, she asserts that her counsel's cross-examination emphasized (1) the brutality of the crime, (2) the gruesome nature of the autopsy, and (3) the fact that the complainant's arrhythmia was caused by the "stress of him getting his whippings."
Once again, we emphasize that we are faced with a silent record. Moreover, "cross-examination is an art, not a science, and it cannot be adequately judged in hindsight." Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Generally, a "[defendant]'s suggestion that cross-examination should have been conducted in a different way 'does not rebut the presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'" See id. (quoting Resendiz v. State, 112 S.W.3d 541, 548 (Tex. Crim. App. 2003)); see also Fulgium v. State, 4 S.W.3d 107, 117 (Tex. App.—Waco 1999, pet. ref'd) ("We will not presume ineffectiveness of counsel and second-guess counsel's reasons simply because [defendant's] new counsel would have pursued the case and the questioning differently.").
Here, the complained-of questions may have been part of counsel's strategy. For example, Coleman's counsel may have been attempting to demonstrate that some of the complainant's injuries were older, and thus not a part of the beating that killed him. The questions may also have been an effort to attribute some of the bruising on the complainant's body to lividity, rather than the beating. See Jackson v. State, 720 S.W.2d 153, 157 (Tex. App.—Houston [14th Dist.] 1986, pet. ref'd) ("Whether counsel's trial strategy aided the State's case or not is purely speculative, since the testimony also reflects investigative gaps on the part of the police."). On this record, we do not know what counsel's strategy was. We conclude that Coleman's trial counsel's cross-examination was not so outrageous that no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at 593.
Conclusion
We affirm the judgment of the trial court.
Jennifer Caughey
Justice Panel consists of Justices Bland, Lloyd, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).